Judge orders mental exam for Loughner

by Michael Kiefer - Mar. 10, 2011 12:00 AMThe Arizona Republic

TUCSON - A federal judge on Wednesday ordered Jared Loughner to undergo a psychological evaluation to determine his competency to stand trial, laying aside defense concerns that it might endanger the developing relationship between the man accused in the Tucson-area shooting and his lawyer.

Assistant U.S. Attorney Wallace Kleindienst cited the apparent distrust of government by Loughner, his concerns that the FBI and CIA were monitoring him, and a possibility that he was hearing voices as reasons for immediate evaluation.

U.S. District Judge Larry A. Burns agreed, saying he did not want to continue toward trial "until I'm assured that Mr. Loughner is on board."

Burns set a competency hearing for May 25.

Wednesday's hearing was the first to be held in Tucson. Several of Loughner's victims and his father attended. The courthouse was the professional home of U.S. District Judge John Roll, 63, one of the people killed in the Jan. 8 shooting.

During the hearing, Burns also entered a not-guilty plea on behalf of Loughner and ordered the unsealing of inventories of search warrants served at Loughner's home shortly after the attack. They were unsealed at the request of The Arizona Republic and 12 News.

Loughner is charged with 49 felony counts related to the shooting at a supermarket outside Tucson. The attack killed six people, including Roll, and wounded 13, including U.S. Rep. Gabrielle Giffords.

The attack happened as Giffords was holding a "Congress on Your Corner" event to meet with constituents.

On Wednesday, Loughner, 22, was led into court in chains and a khaki prison uniform. He faced the court with his customary smirk, nodding and smiling in response to the judge's words. When the court bailiff asked if his name was Jared Lee Loughner, he answered in a sing-song voice, "Yes, it is."

At least two of the shooting victims, Bill Badger, 74, and Susan Hileman, 58, sat on the left side of the courtroom. Loughner's father sat on the right side, staring down at the wall next to him with a disconsolate look on his face. He later brushed by reporters on his way out of the courtroom.

Loughner listened attentively to the hearing, smiling and nodding at the mention of the videos he posted on YouTube and raising his eyebrows at the mention of his mental health.

His hair was short and brushy, his sideburns had crept down his cheeks and he sported a tiny goatee on his chin.

The bailiff read the counts against Loughner: murder and attempted murder of a federal employee; attempted assassination of a member of Congress; causing death through use of a firearm; use of a firearm in relation to a crime of violence; and the civil-rights offenses of causing death to participants at a federally provided activity and injuring participants at a federally provided activity.

Although it will be several months before U.S. Department of Justice officials in Washington, D.C., decide whether to seek the death penalty against Loughner, 14 of the charged counts are punishable by death.

The U.S. Attorney's Office last Friday filed a motion asking Burns to order Loughner to undergo psychological evaluation to determine his competency. Competency in the legal sense means that the defendant understands the proceedings against him and is able to assist his defense counsel in the case.

Judy Clarke, Loughner's lead attorney, pointed out in the hearing, "The existence of mental illness does not necessarily render someone incompetent."

However, she asked Burns not to grant the prosecution's request at this time, arguing that it would endanger her developing relationship with her client, one of the defining elements of competency.

Kleindienst pressed for the evaluation. "We have an irrational incident to begin with," he said. "Of course all murders are irrational, but this was more irrational than most."

Burns opted for an evaluation sooner rather than later. "Essentially, we're in limbo here," he said. "If he's not competent, everything has been for naught."

The judge urged Clarke and Kleindienst to come to an agreement on whether the evaluation could be done in Tucson or if Loughner would have to be transferred temporarily to a facility in San Diego.

Burns also addressed several matters accumulating in the case.

The Arizona Republic and 12 News had requested access to search warrants and other documents that the prosecution and/or defense wanted to keep sealed. Burns ordered the warrants unsealed, and they were released before the end of the day with certain inflammatory notes, things that might not even be admissible at trial, blacked out.

Clarke, meanwhile, is trying to block prosecutors' requests for handwriting samples from Loughner to compare with writings found at his house.

She also hopes to block federal prison staff from releasing information about Loughner, including non-confidential interviews with prison psychologists.

Given the pending competency evaluation, Clarke suggested decisions on those issues be postponed along with discussion about setting a trial date.

The parties are at odds over when the trial should take place and by what date the government should make its decision on whether to seek the death penalty.

Burns told both sides he wanted to set a September trial date, and prosecutors suggested a schedule placing their death-penalty decision in July. But Clarke wrote in a motion that she would need more time and asked for a trial date in January 2013.

Given the complexity of defending murder cases, it is not unusual for two years or more to pass between indictment and trial in state or federal court.